Date: 20100706
Docket: IMM-2183-10
Citation: 2010
FC 730
Vancouver, British
Columbia,
July 6, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
FABIAN
VAKSMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant Fabian Vaksman is of Russian origin and is a citizen of both the United States of America and Israel. He is currently in detention in Canada having been placed there by
officials of the Minister of Citizenship and Immigration. That detention has
been the subject of reviews on previous occasions and a further review is
scheduled to take place shortly. The reviews that have taken place have
resulted in continued detention of the Applicant.
[2]
The
Applicant was convicted by a United
States court of
uttering threats to a public official under the provision of Title 18, section
875(c) of the United States Code. That conviction brought with it a term
of imprisonment. The Applicant, however, was given a period of time before he
was required to report for imprisonment. Instead of reporting, the Applicant
collected some of his belongings and money and drove to the Canadian border in
British Columbia where he sought entry into Canada claiming refugee status. Initially, the
Applicant did not reveal the fact of his conviction and imminent incarceration.
It was only upon subsequent questioning that this became known. At the hearing
of this motion, the Applicant advised that an appeal had been taken from the
conviction, its status is unknown.
[3]
As a
result, the Minister’s officials placed the Applicant in detention subject to
the various reviews as discussed. The Applicant requests that he be released
from detention, subject if necessary to frequent reporting and electronic
monitoring, and that he be removed not to the United States but to Israel. The Applicant has produced a letter
from an Israeli consular official to the effect that Israel is prepared to receive him upon receipt
of appropriate travel documents.
[4]
The Respondent,
properly named the Minister of Citizenship and Immigration, objects to this
motion on a number of grounds. The first is that the Applicant’s detention is
the subject of a continuing review process, a hearing is scheduled to take
place shortly and until a determination is made the Court lacks jurisdiction to
entertain the Applicant’s request.
[5]
Another
ground for objection to the Applicant’s motion is that the choice of country of
removal in circumstances such as this is, the Minister argues, that of the
Minister. The Minister’s counsel argues that where section 241(1) of the Immigration
and Refugee Protection Act, S.C. 2001. c. 27 (IRPA) is silent as to who
makes the choice of country of removal if a choice is available, section 238(2)
gives the Minister a discretion to approve or not a choice made by a person to
be removed based on, among other things, whether the foreign national is a
fugitive from justice from another country or is seeking to evade or frustrate
the cause of justice in another country.
[6]
The
Applicant argues that he was wrongly convicted in the United States, that an
appeal is pending and that Israel is prepared to receive him.
Therefore, he, the Applicant, should be allowed to choose Israel.
[7]
I agree
with the Minister’s counsel. In circumstances such as the present, the choice
of country of removal is that of the Minister. Further, since the Applicant’s
continued detention is currently under review, it is premature for this Court
to entertain a motion for release. Each decision is a fresh review: Feimi v.
Canada (Minister of Citizenship and
Immigration),
Feb. 27, 2006, 2006 FC 256 at para. 14.
ORDER
ACCORDINGLY,
THIS COURT ORDERS that:
1. The
style of cause is amended to name the Minister of Citizenship and Immigration
as the Respondent;
2. The
motion is dismissed.
3. No
Order as to costs.
“Roger
T. Hughes”
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